P L D 1971 Supreme Court 82 (PLP)

A preliminary, objection has been raised on behalf of the respondent in Appeal No. 57-D of 1968, that it is barred by 1208 days and is liable to be dismissed for this reason. The allegation of the respondent is that the appeal was filed in the High Court on the 11th November 1957. Muhammad Haider Ali Khan Panni, the sole plaintiff-respondent died on the 16th April 1962, while the appeal was pending for hearing in the High Court. His legal, representatives were brought on. the record on the 2nd July 1962. The appeal was heard and dismissed. on the 3rd December 1965. Petition for special leave to appeal was bled against late Muhammad Haider Ali Khan Panni on the 24th March 1966, who had already died about four years before the institution of petition and leave was. obtained against a dead person. The submission of the respondent is that the special leave to appeal has been wrongly granted to the appellant on tie appeal filed against a dead person which is no appeal in the eye of law and is liable to be dismissed on this ground. On the 12th November 1968, the appellant filed an appli cation for substitution alleging that Muhammad Haider Ali Khan Panni died on the 3rd August 1968. On the 10th June 1969 the Court pointed out that it was not a case of substitution. Thereupon, the appellant withdrew the petition for substitution and on the 11th June 1969, filed another petition stating that on receipt of the counter-affidavit it transpired that this was not a case of substitution but amendment of the cause title of the appeal. As the heirs have long been substituted at the High Court stage, the appellant moved an application for correction of the cause title which came .up for hearing on the 16th June 1969 and it was allowed subject to objection of limitation. It is not disputed that an appeal against a dead party can be amended by bringing his legal representatives on the record. Except Sind and Upper Burma Courts, all other High Courts in this sub-continent have taken this view. I am not inclined to take a different view on this point. The contention of the res pondent, however, is that the correction of the cause title after 1208 days means the bringing of the legal representatives or filing of the appeal after 1208 days and the said delay having not been condoned by this Court, the appeal is not maintainable and is liable to be dismissed with costs. In reply, the appellant have not given any explanation for condoning the delay of 1208 days. Their only contention is that on the 19th October 1968, the Supreme Court sent a notice to the Attorney that Muhammad Haider Ali Khan Panni respondent died on the 3rd) June 1968 and steps may be taken to bring his legal representatives on the record. It was in pursuance of this that the appellant moved an application for bringing the legal representatives of the deceased on the record. According to the appellant, the mistake on their part was bona fide and the delay in correcting the cause-title may be condoned. After hearing the learned counsel for the parties I am satisfied that no case has been made out to condone the delay of 1208 days. The appellant was negligent in pursuing the remedy in this Court. They filed the appeal against a dead person and corrected the cause-title after a lapse of 1208 days. In the absence of any satisfactory explanation, the appeal is barred by 1208 days It is accordingly dismissed with costs. Coming now to the merits of the case, it will be noticed that the question whether the East Bengal State Acquisition and Tenancy Act, 1950, was an ultra vires piece of legislation has been finally settled by a decision of this Court in the case of The Province of East Pakistan and another v. Md. Mehdi Ali Khan (P L D 1959 S G (Pak) 387). It was held by this Court according to the majority view that the Constitution of 1956 having been abrogated, the fundamental rights were no longer in existence and the writ petitions filed to challenge its validity had abated because of the provisions of clause 7 of Article 2 of the Laws (Continuance in Force) Order, 1958. This question was further considered in the case of Tanbir Ahmad Siddiky v. The Province of East Pakistan and others (P L D 1968 S C 185). It was held in that case as under:-- "The first point raised by Mr. Hamidul Huq Chowdhury was that the decision of this Court in Muhammad Mehdi Ali Khan Panni's case merely amounted to a declaration that the remedy by way of a writ was barred and that the right of the appellants to retain the property it dispute, remained intact. This position is untenable. The decision in that case proceeded on the principle laid down in State v. Dosso P L D 1958 S C (Pak.)

533. It was held therein that with the disappear ance of the late Constitution and its replacement by a new legal Order which excluded that Constitution, all proceedings in cases in which the validity of a law had been called in question on the basis of Fundamental Rights, embodied in the late Constitution had abated, under clause 7 of Article 2 of the Order. It was laid down clearly in that case that the Funda mental Rights had not survived the successful Martial Law Revolution, On that point there was no difference of opinion among the Judges of this Court. The minority view in, that ease only expressed a doubt as to whether the con cluding words of clause 7 of Article 2 of the Order, had the effect of bringing to an abrupt end, the proceedings in the petitions before the High Court, commenced by the affected parties at a time when the late Constitution was in force. - My Lord the Chief Justice considered in that case that the writs should not be recalled unless the judgment of the High Court was itself open to question, on the point of the relevant law's repugnancy to Article 5 of the late Constitution. After examining the position in this regard, he reached the conclusion that the High Court's order could not be sustained." The only point, therefore, that requires consideration in these appeals is whether the High Court was right in affirming the decision of the Subordinate Court that the notifications on the basis of which the Wakf Estates in these cases have been acquired were duly published in the official Gazette. Mr. Asrarul Hussain, learned counsel for the appellant has raised an alternative plea. He argued that even assuming that the impugned notifications were bad there was a notification of whole sale acquisition of these estates dated the 2nd April 1956, which came into effect on the 12th April 1956 and under this notification the wakf properties now vest in the Provincial Government from this date. This alternative plea was raised in the High Court. It will be convenient to dispose of this point first. It was also urged before the High Court that it should take notice of subsequent events. In this connection, it was argued in the High Court on behalf of the appellant that even if it be held that the notifi cations in question were not duly published, the Wakf Estates must be held to have been acquired by virtue of the general notification dated the 7th April 1956 and on publication of notification under section 43 of the Act after preparation of Compensation Assessment Rolls in regards to these Estates. In order to support this contention they filed application in each of the appeal praying for admission of some Gazette notification published under the provisions of the Sind Act. The learned Judges of the High Court rejected this plea with the following observations: "After hearing the learned counsel for the parties, we have felt that the point raised by the learned Advocate-General does not fall within the scope of the enquiry in these appeals. The Courts below in three of the suits have found that the notification on the basis of which the Provincial Government claimed to have acquired the Estates, were not published. It has further been found, on the authority of the decision of the Supreme Court in the case of Jibendra Kishhore Achharyya Cnowdhury and 58 others v. The Province of East Pakistan and another P L D 1957 S C (Pak.) 9 that the provisions of the Act, so far as they relate to the acquisition of wakf properties, are ultra vires and void. In this view, the suits have been decreed and the Province of East Pakistan has been permanently restrained from taking possession of the Wakf Estates. While we feet that it is necessary for us to consider how far the decrees for injunction in the absolute form they have been passed are maintainable in view of the later decision of the Supreme Court in the case of The Province of East Pakistan and others v. Md. Mehdi Ali Khan a d others P D L 1959 S C (Pak.) 387 we do not see why it is necessary to enter into the question whether the properties of the Wakf Estates have vested in the Provincial Government on account of the actions taken under the Act subsequent to the decrees in these cases." They further observed as under:- "Learned Advocate-General has drawn our attention to the decision in the case of Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhury and others A 1 R 1941 F C 5, in support of his contention that events subsequent should be taken into consideration to see whether the reliefs granted to the plaintiffs can be sustained. In this case the Federal Court took into consideration an amendment of the law which was made during the litigation in question. This case, in our view, therefore, is no authority for the proposition contended for by learned Advocate-General before us. In the case of Zahur Din and another v. Jalal Din and others A I R 1944 Lah. 319, a Full Bench of the Lahore Hgih Court has observed that no doubt Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment and a fresh suit by him would be barred by limitation although in cases where it would not be so barred, different considerations might come into play and a different view might be possib'e. The case of Sayeedur Rahman v. Chief Election Commissioner, Dacca and 2 others P L D 1965 S C 157 is also a case of change of law during the pendency of the proceedings in question. - We have already noticed that the Courts below in three of the suits, besides finding that the notifications were not published, have found that the provisions of the Act relating to acquisition of wakf properties are void. We shall consider how far this latter finding can be maintained. If this finding is not upheld, the only relief on the findings that the notifications were not published, to which the plaintiffs on the pleadings would be entitled to, is a declaration that, on the basis of these notifications, the Estates did not vest in the Provincial Government. Mr. Brohi, who appears for the plaintiff -respondents in three of the appeals, and Mr. Hamidul Huq, who appears for the plaintiff-respondent in the fourth appeal, have accepted this position, and in that view, we fail to see how in these appeals it is necessary for us to enter into the question whether the Estates have otherwise vested in the Provincial Government. Regard being had to these facts, we have not accepted the prayer for admission of additional evidence and propose to consider only how far the reliefs granted can be maintained on the pleadings in these cases." And question for consideration, therefore, is whether the appellants are entitled to raise a point which is of their own creation after the suit has been instituted, namely, that the Wakf Estates should be declared to have been acquired by virtue of general notification dated the 7th April 1956 and on publication of notification under section 43 of the Act after preparation of compensation assessment rolls in regard to these Estates. In my opinion, the High Court was perfectly justified in rejecting the prayer of the appellant to raise this point at the stage of the appeal. It is not a case of amendment of law during the C pendency of the suitor the appeal. It is a case where the appellant themselves by their own act have issued another notification to defeat the suit of the respondents. It seems to mc that by acting in such a manner they are not entitled to defeat the claim of the respondents by raising a new plea at the appellate stage. The Privy Council considered this aspect of the case in Mst. Anundmoyee Chawdhourayan v. Sheeb Chunder Roy,( (1863) 9 Moo. Ind. App. 287). Their Lordships observed as under:- "The first and most important question is, whether the decision of the Principal Sudder Ameen was, when pronounced a correct decision of the issues then pending before him between the then parties to the suit. No subsequent event or devolution of interest can affect this question ; because to give effect to these, should justice require it would be the office not of an appeal but of some supplemental pro ceedings." The ordinary rule is that the right of the party must be determined as on the date of the suit and not on the basis of right which accrued to them after the institution of the suit. It is open to the appellant to rely on this ground in separate proceedings for taking possession of the properties acquired under the above mentioned general notification and it will be open to the respondents to challenge the validity of this notification in those proceedings. It will be noticed that the Courts below have only granted relief to the appellant on the basis of the notification alleged to have been issued and published under section 3(1) of the East Bengal Estate Acquisition and Tenancy Act, 1950. There is no restraint on the appellant to take action against the respondents on the basis of any other ground that might have arisen on account of certain actions taken by them under the provisions of the said enactment. In these circumstances I am not inclined to allow the appellant to raise this point in the appeal before this Court. The only question that now remains for consideration is whether the notification issued under section 3(1) of the East Bengal State Acquisition and Tenancy Act, 1950, were published before the date they were to come into force. Section 3 (1) of the East Bengal State Acquisition and Tenancy Act, 1950, reads as under:- "3(1). At any time after the commencement of this Act, it ,hall be lawful for the Provincial Government to acquire, by notification in the official Gazette, with effect from such date as may be specified in the notification (hereinafter referred to as the notified date),- (i) all interests of such of the rent-receivers as may be specified in the notification, in their respective estates, taluks, tenures, holdings or tenancies, as the case may be, in any district, part of a district or local area, and (ii) all interests of all rent-receivers whose properties are, for the time being, under the management of the Court of Wards under the Court of Wards Act, 1879, in their respective estates, taluks, tenures, holdings or tenancies, as the case may be, including all their interests in all sub-soil and rights to minerals in such estates, taluks, tenures, holdings or tenancies." The definition of notification given in section 2(18) of the said Act is as under "`Notification' means a notification published in the official Gazette." The contention of Mr. Asrarul Hussain, learned counsel for the appellant is that the mere printing of the notification is sufficient for its publication. According to him, the mere production of the notification is a sufficient proof of the fact that it has been published. The contention of the learned counsel has no impressed me. Under section 2(18) of the East Bengal State Acquisition and Tenancy Act, 1950, notification means a notification published in the official Gazette. Under section 78, of the Evidence Act, a notification can be proved by production of a copy of the Gazette. Under section 114(E) of the Evidence Act, there is a presumption that all judicial and official acts have been regularly performed. Monir, in his Principles and Digest of the Law of Evidence Act (4th Edition), at p. 682, has stated as under: "There is no presumption under section 114(E) that any publication has been made under section 272 or under section 234 of the Bengal Municipal Act or under section 99, Bengal Cess Act, or under Rule 119 of the Defence of India Rules. But when an order is proved to have been published in the Gazette, it may be presumed that the publication of the order was in accordance with the Rules. The onus of proving that an order under Rule 56 of the Defence of India Rules was lawfully issued by an officer properly empowered is on the prosecution and a mere statement by the Sub-Inspector that such an order was published cannot lead to the presumption that the requisite order must have been made by a competent authority. But when once a publication under a Municipal or Local Boards Act is proved, there is a presumption that the publication was made after the necessary formalities. Where an officer has himself signed a notification which is published in the Gazette, it must be presumed that the publication is in the manner in which the officer has directed it to be." The learned counsel for the appellant also referred us to section 81 of the Evidence Act which only says that there is a presumption as to the genuineness of any official Gazette if such document is substantially in the form prescribed by law and is produced from proper custody. In my opinion, in order to prove the publication of a notification it is not only necessary to prove that the notification was inserted in the official Gazette but there should also be proof that it was published in the manner usually adopted for) publishing such documents. This point was considered by a Division Bench of the Bombay High Court in the case of Balkrishna Anant Hirlekar v. Emperor (A I R 1931 Bom. 203). In that case, the question was whether an association has been declared unlawful under the Criminal Law Amendment Act, 1908. It was urged before the Bombay High Court that all that is required is that the declaration should appear, that is to say, that it should be inserted in the official Gazette. This contention was repelled by Beaumont, C. J. In this connection, the learned Chief Justice observed at p. 133 as under : - "Now, I can find nothing in the Act which makes the proof of knowledge in the accused that the association is unlawful a condition precedent, to a prosecution for being a member of such association. But where an association hereto fore lawful is made unlawful, it appears to me that the most elementary principles of justice and fair play require some notice of the illegality to be given to the members of the association so that they may regulate their conduct accordingly. I think that the Legislature has provided for such notice by making it necessary to notify the declaration of the illegality in the official Gazette. The official Gazette is the normal means of communicating Government intention to the public. The learned Government pleader has argued, and I think that the paucity of evidence in this case compelled him to argue, that all that is required is that the declaration should appear, that is to say, that it should be inserted in the Gazette. I do not take that view. The word used in section 16 is 'notification' and not 'insertion'. 'Notification' is defined in Webster's Dictionary as- 'Act of notifying; act of making known; an intimation or notice; esp., act of giving official notice or information by words, by writing, or by other means so that the essence of notification is the giving of notice, and, in my opinion, the words 'by notification in the official Gazette" mean simply 'by giving notice in the official Gazette' One can illustrate the point under con sideration by a simple illustration. Supposing the Govern ment make a declaration that a particular association is unlawful and instruct the Government printers to print an extraordinary official Gazette containing that declaration. Supposing that some change in the political situation then takes place, and the Government alters its view. It communicates with its printers and finds that the Gazette has been printed and is ready for publication, but that nothing further has been done. The Government then instructs the printers to send all the copies to the Secretariat, and there they are retained. It seems to me that in such a case as that, it is quite plain that the declaration making the association unlawful has not been notified in the Gazette, and the association has not become unlawful. But if the Government view is right, then in such a case the association has become unlawful though no body knows the fact except the Government and anybody may be prosecuted for being a member of that association without having had any opportunity of learning that the association has become unlawful. In my opinion this is not the law, and in order to prove that an association has been declared unlawful under the Criminal Law Amendment Act of 1908, the Government must not only insert the declaration in the official Gazette, but must publish the Gazette in the manner usually adopted for publishing such Gazette, and allow a reasonable opportunity to people concerned to see the Gazette. If any one suspects that an association of which he is a member is likely to be declared unlawful, he can take steps to ascertain the manner in which the Gazette is published, and to inform himself of the contents of any Gazette, and if he does not do that and is prosecuted for being a member of an unlawful association, he has only himself to blame for not having taken the precautions which the statute enables him to take." Mr. Asrarul Hussain, learned counsel for the appellant has also referred to another decision of the Bombay High Court in the case of Emperor v. Dharmanand Kosambi (A I R 1931 Born. 132), but this decision does not help him and approves the exposition of law in the case of Balkrishna Anant Hirlekar v. Emperor. The learned counsel has further cited the cases of Saiyyid Abul Ala Maudoodi and others v. The Government of West Pakistan through Secretary to Government of West Pakistan, Home Department, Lahore, (P L D 1964 Kar. 478) Tamizdddin Ahmad v. The Government of East Pakistan, (P L D 1964 Dacca 795) Regina v. Logan and others, ((1957) 2 Q B 589) Johnson v. Sargant and Sons ((1918)1KB101), G. P. Stewart, Collector of Sylhet v. Brojendra Kishore Roy Chowdhury (43CWN913) and In re : Art. 143, Constitution of India and Delhi Laws Act, 1912 (A I R 1951 S C 332). In the last mentioned decision it was held by the Indian Supreme Court that publication of some reasonable sort is essential before a notification or Act comes into force. The other decisions referred to above also do not help the contention of the learned counsel for the appellant. The case of Regina v. Logan has no relevancy for the decision of the present case. The question there was whether an Act which was to come into force on January 1, 1957, came into facts on that date in Hong Kong or not. In the case of The Queen v. Wolferstan and others ((1893)2QB451) it was held that a highway parish having no church, a highway rate is duly published if notice thereof is affixed in some public and conspicuous place or situation in highway parish. In the case of Johnson v. Sargant & Sons, an Order made by the Food Con .roller under the Defence of the Realm Regulations was dated May 16, 1917, but was not known to the parties to the action or to the public generally till May

17. It was held that the Order came into operation only when it became known, namely, on May

17. The above discussion clearly shows that a notification can be said to be published only when some means is adopted to communicate it to the public or to the party concerned in order to publish it. It is, therefore, not possible to hold in the present case that the impugned notifications were published on the date on which they were inserted in the official Gazette. The respondents have challenged this fact in the plaints. They have specifically alleged in it that the notifications were not published in accordance with law and they were published much later than they cane into force. The Courts below, therefore, were justified in going into the evidence for finding out whether the notifications were issued before the notified date as required by section 3(1) of the East Bengal State Acquisition and Tenancy Act, 1950. Now I shall take up the appeals separately in order to find out whether the finding of the High Court that the notifications were not published on the notified date is correct or not. This has arisen out of First Appeal No. 11 of 1968. The notification in dispute in this case is No. 8717-L. R. dated the 28th May 1955 said to be printed in an Extraordinary Dacca Gazette, dated the 8th June 1955. In the notification, it was stated that the Provincial Government was acquiring the Estates in question with effect from the 1st July 1955. in paragraph 10 of the plaint, the respondents have asserted that the said notification was not published either on the 8th June 1955 or the 1st July 1955. According to them, it was published much later. Mr. Asrarul Hussain, learned counsel for the appellant contended that the Courts below were not justified in adjudicating upon this question as no issue was framed on this point. He further contended that this point was not even taken in the notice under section 80 of the Civil Procedure Code. This objection was also taken in the High Court and was repelled on the ground that no prejudice has been caused to the appellant by not framing any specific issue on it. The pasties have led evidence in support of their cases and it was on this evidence that decision has been given by the Courts below. In my opinion, the procedure adopted by the Courts below cannot be are made in shy plaint and they are challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue. The evidence in this case about the publication of the official Gazette has been produced by the plaintiffs and defendant. P. W. 3 Abdur Rahman Sanyamat has stated that the notification acquiring Wakf Estates were not duly published on the 8th June 1955 in the official Gazette. In cross-examination, he admitted that the Mutwalli of the Wakf Estate is a subscriber of the Dacca Gazette and copies of Extraordinary issues are also received by him. The Extraordinary Gazette dated the 8th June 1955, was received by him with the Gazette dated the 14:h July 1955. The appellant in support of their case that the Gazette was published on the rth June 195j, produced D. W. 2 Aminul Islam. This witnss simply stated that the notification was published on the 8th June 1955 as it was printed on that date. He was unable to say when the publication was actually made of the said Gazette. The learned Judges of the High Court have rightly pointed out that it was the duty of the Government Press to adduce evidence to show on what date the publication of the said Gazette was made and, therefore, they were perfectly justified in coming to the conclusion that in the absence of any evidence supporting the assertion that the Gazette was published before the 1st July 1955, it was difficult to hold in favour of the appellant. On this state of evidence the High Court was fully justified in not disturbing the finding of the trial Court that the notification under section 3(1) of the said Act was not published in accordance with law. The learned counsel for the appellant has not been able to persuade me to take a different view of the evidence. He, however, argued that the notification in question would be effective on and from the dale when it was published. This contention was also raised in the High Court. In my opinion, if it is proved that the notification was published after the notified date, namely, Ist July 1955, the notification will be of no use and the property cannot be held to have been validly acquired by the appellant. I would, therefore, hold that the publication of the notification has not been proved in the present case and finding of the High Court on this point calls for no interference. This has arisen out of the First Appeal No. 61 of 1958. In this case the impugned notification is No. 3429-L. R., dated the 10th March 1954. It is alleged to have been published on the 25th March 1954 and is supposed to have come into effect from the 13th April 1954. The allegation of the plaintiff respondent is that the notification in question was not published on the 25th of March 1954 and was not even published up to the 13t't April 1954. In support of this contention he produced P. W. 1 Maulvi Abdur Rahman Sarnabad, who is an Assistant Manager of the Nawab Wakf Estate. He stated that no notification was published on the 25th March 1954 in the Dacca Gazette, Extraordinary as alleged by the Government. He further stated that it was not even published within 25th March 1954 or by the 13th April 1954 and that the subscriber of the Gazette had not received it till August 1954. The appellant defendant have failed to produce any evidence to show that the above notification was published by the 25th March 1954 or by the 13th April 1954. Their evidence, on the contrary, shows that the Revenue Department received 50 copies of the above Gazette on the 17th August 1954 and they were sent to the Collector of Mymensingh, Dacca, Pabna and Tipperah on the 22nd November 1954 and that the Gazette bearing the date 25th March 1954 was actually sent to the subscribers by post between 5th August and 6th August 1954. This was stated on the 25th March 1957 by Maherdra Chandra Sarkar, a Tadbirkar of the case in answer to the interrogatories on behalf of the Government. It is thus quite clear that the notification was not published by the 25th March 1954 or by the 13th April 1954. The finding of the Courts below, therefore, that the notification in question was not published in accordance with law is correct and no exception can be taken to it. This appeal has arisen out of First Appeal No. 22 of 1958. In this case the notification is No. 8717-L. R., dated the 28th May 1955. It was alleged to have been published on the 8tn June 1955, and is supposed to have come into effect on the 1st July 1955. Although in the plaint it was asserted that this notification was not published in accordance with law but at the time of argument this point was not pressed. It was on this account that the High Court has dismissed the appeal. Mr. A. K. Brohi, learned counsel for the appellant, has contended that as the question of publication of notification has been gone into in the other suit, namely, Suit No. 79 of 1955 out of which the First Appeal No. 21 of 1955 arises and the evidence in both the cases is the same, this appeal should also be decided on the view taken in that appeal. The contention of the learned counsel has no force. In the first place, Appeal No. 57-D of 1968, which has arisen out of Appeal No. 21 of 1958 has been disposed of on entirely a different ground. Secondly, the evidence led in the case cannot be read as evidence in the present case. I would, therefore, hold that the High Court was perfectly justified in dismissing Appeal No. 22 of 1958. I would, therefore, dismiss this appeal also. After careful consideration of the argument advanced by the parties, I am satisfied that Appeals Nos. 56-D, 57-D, 58-D and 59-D of 1968, have no force and are liable to be dismissed with costs. I would, accordingly, dismiss them with costs. MUHAMMAD YAQUB ALI, J.- I agree. SAIJAD AHMAD, J.-I agree. K. B. A. Appeals dismissed.